Norfolk & W. Ry. Co. v. Greening, 54665
| Decision Date | 14 September 1970 |
| Docket Number | No. 54665,No. 2,54665,2 |
| Citation | 458 S.W.2d 268 |
| Parties | NORFOLK AND WESTERN RAILWAY COMPANY, Respondent, v. Kenneth J. GREENING et al., Appellants |
| Court | Missouri Supreme Court |
Albert E. Schoenbeck, St. Louis, for respondent.
Paul Brackman, Brackman, Copeland, Oetting, Copeland, Walther & Schmidt, Clayton, Samuel C. Ebling, Millar, Schaefer, White & Ebling, St. Louis, for appellants.
In this condemnation proceeding plaintiff seeks 'to condemn and appropriate' 2.6 acres of land owned by defendants 'for railroad purposes, including use of same for tracks, yards and miscellaneous structures and facilities.' The jury assessed damages at $50,500 and defendants have appealed.
The record covering the six day trial makes it apparent each party exhausted every effort to present all available evidence, but we will attempt to detail only those facts required to resolve the issues now presented.
The land in question is located in St. Louis County near Lambert Field in an industrial complex between Interstate Highways 70 and 270. On June 10, 1963, defendants purchased for $100,000 approximately 19 acres of land in the area near the east terminus of a street identified as Ford Lane. However, we are concerned only with the most eastern contiguous 7.7 acre portion thereof. This tract was divided by Cold Water Creek which extended generally in a northerly and southerly direction. The creek was approximately fifty feet wide and twenty feet deep and covered .915 of an acre. As divided, there remained 5.960 acres west of the creek and .825 of an acre on the east side. Of that part west of the creek, plaintiff seeks to condemn 2.6 acres.
Prior to date of taking on December 8, 1967, the land in question was burdened by two easements in favor of the Metropolitan Sewer District. The first for water drainage was 100 feet wide and followed the course of the creek. The second for an underground sanitary sewer was 36 feet wide and extended along the west edge of the 100 foot drainage easement. The 2.6 acres sought by plaintiff comprised a strip 220 feet wide extending over the sewer easement and adjacent to the west edge of the drainage easement. It was agreed the taking was subject to the restrictions of the sewer easement.
First, defendants submit that the trial court erred when it entered the initial order for condemnation and appointed commissioners to determine damages on September 8, 1967, for the reason the proposed taking was for a private instead of a public use. It is then suggested, in view of the fact plaintiff has taken possession and constructed the proposed railroad tracks, that the cause should be reversed and defendants permitted to pursue such further remedies as were reviewed in Hayden v. Grand River Mutual Telephone Corp., Mo.App., 440 S.W.2d 161. Such possibilities become of interest, however, only if it be determined the original order of condemnation was improvidently entered; and that order, being interlocutory when made, can now be considered on appeal. 'Even though a defendant may contest the right of the plaintiff to condemn, the judgment in such a case is not final or appealable until after the commissioners file their report and the exceptions thereto, if any, are tried and the amount of damages finally fixed.' State ex rel. State Highway Commission v. Hammel, Mo., 290 S.W.2d 113, 117.
The right of plaintiff to seek condemnation can not be denied. Art. 11, Sec. 9, of the 1945 Constitution of Missouri, V.A.M.S., declares railroad corporations to be 'common carriers' and Section 388.370, RSMo 1959, V.A.M.S., specifically provides in part: 'Any railroad company in this state shall have the right to take and hold all necessary ground for * * * sidetracks and other necessary purposes * * * as is now provided by law for the condemnation of other lands.' However, when such power is exercised, and '* * * an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be judicially determined without regard to any legislative declaration that the use is public.' Art. 1, Sec. 28, 1945 Constitution of Missouri. On this issue the following portion of the record is relevant:
Plaintiff's witness: (Direct)
Q Will you tell the Court the nature and extent of the general railroad purposes for which this land is needed?
A It is our intention to construct a railroad running off of a track leading to Ford Motor Company with five tracks adjacent to Cold Water Creek over this property to be used for the storage of and handling of freight cars.
Q So that this 2.6 acres will be part of an overall railroad yard?
A Yes, sir.
Q And cars which would be brought in and used in that yard would be cars transported in both intrastate and interstate commerce?
A Yes, sir.
Q It would be used for carrying out general railroad purposes of the Norfolk and Western Railway Company?
A Yes, sir.
(Cross-examination)
Q * * * you say there are going to be five tracks in this area * * *?
A Yes, sir.
Q Where do those tracks lead?
A They lead to--track leading to Ford Motor Company and they extend to the end * * *
Q The end of your general railroad track?
A They are part of the Berkeley-Robertson Industrial Complex.
Q How far is your line from this point, your regular line, the main line?
A Approximately three quarters of a mile.
Q Really the only purpose of this line is to serve the Ford Motor Company, is it not?
A The purpose of constructing the yard is to relieve other tracks in the area to handle business for Ford Motor Company. We have a number of other industries in the area.
Q But isn't the real purpose of this to serve Ford Motor Company. It has no other general railroad purposes other than that?
Q What are those general purposes?
A We're having difficulty serving the industries in this area due to increased business by Ford Motor and an increase in the size of the industrial complex in the last * * *
Q What industrial complex are you referring to?
A Berkeley-Robertson-Hazelwood Industrial Complex. Within the last two years there have been warehouses located by Olin-Mathieson, Edsel Company, Obermeier and others.
Q Do all these companies have spur tracks leading from this general area to which this general area will provide access?
A Yes, they do.
Q The cars from those areas will have access to this area you're seeking to condemn?
A The cars for the other industries will have access to these areas, but those cars--it is not our intention to keep them in this immediate area.
(Redirect)
Q * * * the industries you mentioned, those in the Robertson-Hazelwood-Berkeley complex, they at the present time are not receiving adequate service due to shortage of space in the area for you to carry out the general railroad purposes?
A We have had considerable complaints from our customers in the Berkeley area about service.
Q Out of what situation do those complaints arise?
A The fact that we have more cars than we have track space to place them on.
At this original hearing, defendants offered no evidence to develop their present argument the taking was for the private use of Ford Motor Company, but relied on plaintiff's obligation to establish the taking was for a public use. On the testimony as outlined, the trial court found the taking to be for a public use. Defendants rely primarily on the question and answer: However, if isolated portions of the testimony are not taken out of context, we believe the trial court's conclusion to be both reasonable and proper. It was established that other industries, as well as Ford, were expanding rapidly in the area; that there was a shortage of storage area for the rail cars needed; that this shortage prohibited plaintiff from providing adequate service to other customers in the area; and that the problem was not limited to the demands of Ford. Even though Ford, as a single customer, may derive a substantial benefit from the expanded facilities, the contemplated improvement in service to other industries makes the 'public'...
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